Alfred Low v Maxi Duncan [2015] CSOH 133

In the recent Court of Session judgement of Alfred Low v Maxi Duncan, the Court was asked to consider the contentious issue of contributory negligence in road traffic accidents involving pedestrians.  The case follows Jackson v. Murray[2015] where the Supreme Court held that a teenage pedestrian, who had been knocked down after stepping out into an unlit rural road, was only 50% to blame for the accident. 

The circumstances of Low read like a poorly written episode of The Sopranos, were it set at a drunken 18th birthday party in remote Scotland.  The pursuer was at the party at a hotel in Aberdeen.  Late in the evening, the defender and his friends drove to the hotel - they had not been invited to the party but were keen to "crash" it and start a fight with one of the guests.

The defender drove into the hotel car park, when the party guests started spilling out and thus began a "verbal altercation" between both sides. The defender left and proceeded to drive back up a short lane but was pursued by some of the more belligerent party guests, including the pursuer.

The defender's vehicle reached a junction, drove some 100 yards to where there was another junction and then performed a U-turn.  By this time, the posse of party-goers, including the pursuer, had congregated on the side of the road, with a number of them spilling out onto the road. There was evidence that the pursuer, who was standing in the middle of the road, was "amped up" and angry. The defender accelerated his car and swerved to the right to avoid the party - goers. At this point, the pursuer inexplicably ran from the middle of the road and into the path of the defender's vehicle.  The vehicle struck the pursuer, causing him serious injury.

Senior counsel for the defender conceded that primary liability for this accident rested with the defender and while Lord Brailsford accepted an inference of aggression on the part of the defender, he did not find any evidence of a deliberate intention to harm the pursuer. The issue of contributory negligence was then the only one to be decided upon.

Lord Brailsford followed the approach in Jackson in ascertaining the blameworthiness of the parties and the issue of causative potency.  Ultimately he determined that the defender was 90% to blame for the accident.  In reaching this decision, he noted that the defender, in performing the U-turn had both literally and metaphorically chosen to return and place himself in a position where danger existed.  Unsurprisingly he also placed importance on the fact that the defender was in a vehicle and that, on the balance of probabilities (probably quite high in the circumstances) was driving in excess of the speed limit.  The issue of causative potency was clear – the pursuer being on foot was "far more vulnerable" than the defender in his car.

Lord Brailsford found the pursuer 10% to blame on the basis that he was angry and behaving in an aggressive manner when he ran up the lane from the hotel to the junction chasing the defender's vehicle.

It remains to be seen whether the decision will be appealed but given the reprehensible behaviour of all parties involved this may be problematic.  Whilst the apportionment of only 10% for a pursuer who knowingly placed himself in the path of a moving vehicle appears unduly lenient, it is clear that the Court, in light of Jackson, will err on the side of caution in cases of this nature. In short, where an accident involves a vehicle and a pedestrian, the court will expect the driver to give careful deliberation to the pedestrian's actions, whether they be completely reckless as in Jackson, or entirely deliberate, as was accepted in this case.